“We decline to reach hypothetical issues not raised by the facts presented.”
How later courts described this case
- “We decline to reach hypothetical issues not raised by the facts presented.”
Written by the judges who cited it.
The opinion
FILED
SEPTEMBER 11, 2025
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 39587-1-III
Respondent, )
)
v. )
)
IGNACIO COBOS, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, A.C.J. — After pleading guilty to one count of second degree unlawful
possession of a firearm, Ignacio Cobos, in propria persona, filed a handwritten notice of
appeal. Among other things, he requested “appointment of counsel.” Cobos was
appointed appellate counsel who filed an opening brief for him. In the initial brief, his
counsel asserted that (1) his plea was involuntary because Cobos did not understand the
knowledge element of the crime, and (2) his unconstitutional convictions for drug
possession impacted his offender score because it interfered with his possible wash-out
conviction time he lost while incarcerated.
Following the filing of his initial brief, Cobos submitted several letters to this
court, that we construe as motions, claiming he was “unlawfully” appointed counsel.
No. 39587-1-III
State v. Cobos
After his attorney was allowed to withdraw, Cobos filed motions arguing that he was
being denied his right to counsel on appeal. Cobos was granted numerous opportunities
to file a pro se reply brief and statement of additional grounds. When he failed to do so,
the court considered the briefs waived.
As an initial matter, we deny both of Cobos’s motions: the appointment of counsel
was not unauthorized, and counsel was not denied at a critical stage of the proceeding.
Cobos requested counsel in his notice of appeal and fails to show any prejudice from his
appellate attorney’s representation.
Turning to the issues raised by his former attorney in her opening brief, those
arguments fail as well. First, the record reflects that Cobos understood the nature of the
law and the facts behind the charge to which he was pleading guilty, and it was thus
entered on a knowing and intelligent basis. Second, his argument regarding the wash-out
provision for calculating a defendant’s offender score is unsupported by authority and
based on hypothetical facts and assumptions. Consequently, we affirm Cobos’s
conviction and sentence.
BACKGROUND
Ignacio Cobos pleaded guilty to one count of second degree unlawful possession
of a firearm in September 2022. At his plea hearing, Cobos represented himself with
standby counsel present. The court asked Cobos whether he had a chance to look at the
amended information and he responded that he did and confirmed he had a copy of it.
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No. 39587-1-III
State v. Cobos
Cobos likewise confirmed he understood he was pleading guilty to second degree
unlawful possession of a firearm. He informed the court he did not have any questions
regarding his plea paperwork and wanted to proceed.
On the record, the court reiterated Cobos’s statement in his plea and confirmed,
[I]t says here on the second to last page that you are pleading guilty to an
amended information of one count of unlawful possession of a firearm in
the second degree, and under your statement it says, “I possessed
unlawfully a firearm in the State of Washington.”
Rep. of Proc. (RP) at 19. Cobos confirmed that was a correct statement. Additionally, he
reiterated for a second time that he did not have any questions before entering a plea to
the charge and that he was able to speak with standby counsel. The court then asked
“would the parties stipulate to the affidavit also as a purpose for the plea?” RP at 20.
Neither the State nor Cobos objected. Following this question, the court accepted
Cobos’s guilty plea.
Following his guilty plea, on December 16, 2022, in propria persona, Cobos filed
a notice of appeal. In addition, he filed a handwritten motion for an order of indigency to
the superior court. In his motion, Cobos specifically asked the court to order the
following at public expense: his filing fee, clerk’s papers, appointment of counsel, report
of proceedings, as well as the reproduction of briefs.
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No. 39587-1-III
State v. Cobos
Motion for Order of Indigency, State v. Cobos, No. 39587-1-III (Wash. Ct. App. Mar. 15,
2023).
The court entered an order of indigency. Specifically, the court ordered the
following to be paid at public expense: costs necessary for the production of clerk’s
papers, preparation of original documents, and filing fee. However, the court did not
check the box for appointment of counsel.
Within the next few months, Cobos sent this court several letters indicating his
frustration that he had not received any documents related to his case. Around this same
time, the court sent a perfection letter and counsel was assigned to represent Cobos.
Additionally, the court sent Cobos a letter acknowledging receipt of his letters and
advised him that they had been forwarded to his appointed counsel and to contact his
attorney if he had questions regarding his appeal.
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No. 39587-1-III
State v. Cobos
On June 7, 2023, Cobos attempted to file a motion with this court, although both
were rejected. In his motion, he objected to the court forwarding his letters to appointed
counsel, arguing that his questions were directed to the court, not his attorney. This court
responded, informing Cobos his documents were rejected for filing because, among other
things, he was represented by counsel.
On August 7, Cobos’s attorney filed an opening brief. A few weeks later, Cobos
filed a handwritten objection to the court’s appointment of counsel, claiming that he did
not ask for, consent to, or authorize such representation. He stated that he directed a
question to the clerk of the court, and in turn, the clerk directed him to counsel. This
court responded by sending Cobos a letter informing him that an opening brief had been
filed with the court and informed him that he may submit a statement of additional
grounds for review (SAG) pursuant to RAP 10.10.
A few months later, Cobos submitted a formal grievance to the Washington State
Bar Association, stating that his attorney continued to represent him without consent.
Additionally, Cobos filed a motion for an order on appellant’s objection to unlawful
appointment of counsel. In facts relevant to the motion, he stated that the sentencing
court did not authorize public funds for the appointment of counsel on appeal, he did not
ask the court of appeals for appointment of counsel, the appellate court did not issue an
order appointing counsel, and the appellate court did not give Cobos the opportunity to
represent himself.
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No. 39587-1-III
State v. Cobos
The following day, Cobos’s attorney filed a motion requesting permission to
withdraw as counsel. She stated that Cobos’s recent filings indicated grave
dissatisfaction with her representation and that he had clearly stated he wanted her to
withdraw as his attorney. Furthermore, she pointed out that he had objected to her
representation and had attached a document titled “Grievance Against a Lawyer.” Her
request to withdraw was granted.
Cobos then submitted another letter with this court stating that his attorney had
lied when she said that Cobos asked her to withdraw from his case and that at no time did
he ever ask her to withdraw as counsel. Cobos then submitted a motion requesting time
to file a reply brief and requesting information regarding the attorney that would file it for
him. Additionally, he requested additional time to file his SAG. Both extensions were
granted by this court and the letter informed Cobos when his “pro se” reply brief and
SAG were due.
In response, Cobos filed a motion for an order reversing and dismissing his case
with prejudice based on the clerk’s violation of his right to be represented by counsel
and/or the right to represent himself. The court responded, noting that the motion would
be referred to the panel when the appeal was ready to be set.
A few days later Cobos sought to modify this ruling, objecting to this court’s
transformation of the reply brief to a pro se reply brief. In response, this court denied the
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No. 39587-1-III
State v. Cobos
motion to modify. During this time, Cobos continued to send the court letters and submit
other motions.
In January 2024, this court sent a letter to both parties explaining that the case was
set for consideration on March 7, 2024, without oral argument. A few weeks later, Cobos
filed an objection to the hearing and also filed a motion to supplement the record. This
court granted his motion to supplement the record and informed Cobos that the matter
would be reset after all briefing was completed. Additionally, the letter provided Cobos
with very specific details and deadlines for his case moving forward. In particular, it
explained that because Cobos is representing himself on appeal, he could file a reply brief
and a SAG.
A few months later, this court sent the requested hearing transcript to Cobos and
he was reminded that his reply brief and/or SAG were due by April 11, 2024. Cobos
responded, objecting to the case manager’s statement of fact that Cobos was representing
himself. This court acknowledged the letter without response because it noted the matter
had previously been addressed and Cobos was again reminded of the deadline to file his
reply brief and/or SAG.
On April 16, Cobos filed a motion to extend the time to file his SAG. The court
denied the motion because Cobos was granted several extensions and the letter from
March 29, 2024 clearly indicated that it must be filed by April 11, 2024. This same letter
informed Cobos his SAG and reply brief were deemed not filed.
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No. 39587-1-III
State v. Cobos
The next month, Cobos filed a motion to modify the clerk’s ruling to allow him to
file a SAG. This court denied the motion to modify.
On May 28, 2024, Cobos filed another motion regarding the unlawful appointment
of counsel. This court sent Cobos a letter informing him that the motion would be
referred to the panel to be decided with the merits of the case.
On July 3, 2024, Cobos provided copies of documents filed with the Supreme
Court pertaining to this court’s June 10, 2024 order denying his motion to modify. This
court stayed Cobos’s appeal pending a decision from the Washington State Supreme
Court.
On December 11, 2024, the stay was lifted after receiving an order terminating
review from the Washington State Supreme Court. After receiving this notice, this court
sent Cobos a letter informing him the stay was lifted and that his case would be placed on
the next available docket. Cobos was then informed, on April 16, 2025, that his case was
scheduled for consideration on June 5, 2025, without oral argument.
MOTIONS
Cobos contends he was denied his constitutional right to represent himself based
on the unlawful appointment of counsel. Paradoxically, he argues he was denied counsel
at a critical stage in this proceeding. Finally, he moves this court for an order
withdrawing his attorney’s opening brief. We deny each of these motions.
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No. 39587-1-III
State v. Cobos
Both the United States and Washington Constitutions guarantee “ʻa criminal
defendant both the right to assistance of counsel and the right to reject that assistance and
to represent [oneself].’” Sixth and Fourteenth Amend to the United States Constitution;
art. I, sec. 22 of the Washington Constitution; State v. Gwin, 31 Wn. App. 2d 295, 300,
548 P.3d 970 (2024) (quoting State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729
(2001)). These rights are mutually exclusive and do not include the right to hybrid
representation or standby counsel. Gwin, 31 Wn. App. at 300. Moreover, while the
constitution guarantees that an indigent defendant will have court-appointed counsel,
defendants are not entitled to court-appointed counsel of their choice. State v. Hampton,
184 Wn.2d 656, 662-63, 361 P.3d 734 (2015).
The right of a criminal defendant to represent themselves on appeal “is neither
self-executing nor absolute.” State v. Rafay, 167 Wn.2d 644, 652, 222 P.3d 86 (2009).
“While the rules on appeal do not specifically address waiver of counsel or self-
representation, an appellate court has broad discretion to proceed under RAP 17.1(a) or to
fashion an appropriate procedure under RAP 1.1(i).” Id. When a defendant requests to
proceed pro se after being appointed counsel, RAP 18.3(a)(1) provides that counsel may
withdraw on a showing of good cause. Even in a situation where a defendant is not
allowed to represent himself on appeal, “he still has the opportunity to file a pro se
statement of additional grounds under RAP 10.10.” Id. at 654.
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No. 39587-1-III
State v. Cobos
Cobos filed at least two objections to this court’s appointment of counsel, arguing
that he did not ask for a court-appointed attorney. We deny these motions and overrule
the objections because they are not supported by the record. In his notice of appeal,
Cobos requested the appointment of counsel. He cannot complain that the court granted
his request.
For similar reasons we deny Cobos’s motion based on his argument that the order
allowing his attorney to withdraw left him without representation at a critical stage of the
proceedings. Not only did Cobos request that his attorney withdraw so that he could
represent himself, but Cobos fails to show that he was not represented by counsel at a
critical stage. Cobos’s attorney filed an opening brief. It was not until after she filed this
brief that Cobos filed a bar complaint against his attorney and sought to have her
removed. At the same time, Cobos’s attorney moved to withdraw, indicating that Cobos
wanted her to withdraw. Cobos cannot complain or seek to gain an advantage because
we granted his request to allow his attorney to withdraw.
Finally, Cobos requests that we strike his prior attorney’s brief from the record
pursuant to RCW 2.44.020. This statute discusses the proper procedure where an
attorney appears without authority. In particular, it states:
If it be alleged by a party for whom an attorney appears, that he or
she does so without authority, the court may, at any stage of the
proceedings, relieve the party for whom the attorney has assumed to appear
from the consequences of his or her act; it may also summarily, upon
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No. 39587-1-III
State v. Cobos
motion, compel the attorney to repair the injury to either party consequent
upon his or her assumption of authority.
RCW 2.44.020.
We deny Cobos’s motion for several reasons. First, as previously discussed,
Cobos requested the appointment of counsel and consequently, his attorney was not
representing Cobos without authority. Second, the statute he cites as authority for this
court to strike his prior attorney’s brief or to require her to do so is discretionary. The use
of the word “may” indicates that a court has discretion to act but is not required to do so
under a statute. See Konicke v. Evergreen Emergency Servs., P.S., 16 Wn. App. 2d 131,
142, 480 P.3d 424 (2021) (“The word ‘may’ is ordinarily regarded as permissive.”). As a
result, this court is not required to act under the statute and even if so, Cobos fails to
identify an injury requiring repair.
Even assuming there was error, Cobos cannot show prejudice. Cobos was not
denied representation at a critical stage of the proceeding. By the time his attorney
withdrew, an opening brief had already been filed. At this point in the proceedings the
attorney had fulfilled all mandatory obligations. A reply brief was optional and not
mandated under the circumstances. See RAP 10.3(c). Still, Cobos was given the option
to file a reply brief if he thought one should be filed. Additionally, if he thought his
attorney’s opening brief failed to raise issues, Cobos was informed that he could file a
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No. 39587-1-III
State v. Cobos
SAG. He did not file either a reply brief or a SAG. Were we to grant Cobos’s motion to
withdraw his attorney’s brief, Cobos would be left without any briefing in this matter.
We deny Cobos’s motions to reverse his conviction and dismiss with prejudice.
ANALYSIS
1. INVOLUNTARY PLEA
A. Direct Appeal and Notice of Appeal
As an initial matter, the State contends that Cobos failed to preserve the
voluntariness of his plea. The State argues that Cobos first raised the issue of the
voluntariness of his plea in a motion to vacate his judgment. While his notice of appeal
designated his judgment and sentence, it did not designate the order denying the motion
to vacate the judgment. The State contends this lapse precludes review. We disagree.
Under RAP 5.3(a), a notice of appeal must “designate the decision or part of
decision which the party wants reviewed.” Additionally, RAP 5.3(a) provides that the
party filing the notice of appeal “should attach to the notice of appeal a copy of the
signed order or judgment from which the appeal is made.” However, “[n]othing in RAP
5.3 requires a complete listing in the notice of appeal of the issues to be reviewed.”
Stevens v. Gordon, 118 Wn. App. 43, 58, 74 P.3d 653 (2003). Furthermore, this court
“will disregard defects in the form of a notice of appeal . . . if the notice clearly reflects
an intent by a party to seek review.” RAP 5.3(f).
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No. 39587-1-III
State v. Cobos
Here, the notice of appeal listed the judgment and sentence. Additionally, the
order denying Cobos’s motion to vacate his judgment and sentence and withdraw his
guilty plea was attached as part of the clerk’s papers for this court’s review. Therefore,
the State is incorrect to assert that the order denying Cobos’s motion was not designated
in the record. To the extent there is a defect in his notice of appeal, we exercise our
discretion to review the issue presented. Although the language used in the notice of
appeal only refers to the judgment and sentence it otherwise satisfies the minimal
requirements in RAP 5.3(a).
B. Involuntary Plea
Cobos contends his guilty plea to second degree unlawful possession of a firearm
was involuntary. Specifically, he argues the plea hearing did not affirmatively show he
understood his conviction required knowing possession of a firearm by someone with a
prior felony conviction.
Due process requires that a defendant intelligently and voluntarily enter into a
guilty plea. In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 594, 316 P.3d 1007
(2014). This court reviews whether a defendant’s plea “was intelligent and voluntary de
novo.” State v. Harris, 4 Wn. App. 2d 506, 512, 422 P.3d 482 (2018). To determine this,
the record must affirmatively show that the accused understood the law and the facts.
State v. R.L.D., 132 Wn. App. 699, 705-06, 133 P.3d 505 (2006). However, this does not
necessarily “ʻalways require a description of every element of the offense’” but instead,
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No. 39587-1-III
State v. Cobos
at a minimum, “the defendant would need to be aware of the acts and the requisite state
of mind in which they must be performed to constitute a crime.” Henderson v. Morgan,
426 U.S. 637, 647 n.18, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); In re Pers. Restraint of
Keene, 95 Wn.2d 203, 207, 622 P.3d 360 (1980).
To determine whether a factual basis exists to support a defendant’s guilty plea,
the trial court “must determine ‘that the conduct which the defendant admits constitutes
the offense charged in the indictment or information.’” Id. at 209 (internal quotation
marks omitted) (quoting McCarthy v. United States., 394 U.S. 459, 467, 89 S. Ct. 1166,
22 L. Ed. 2d 418 (1969)). This determination helps ensure a defendant is pleading
“‘voluntarily with an understanding of the nature of the charge but without realizing that
his conduct does not actually fall within the charge.’” Id. (quoting McCarthy, 394 U.S.
at 467).
Cobos pleaded guilty to second degree unlawful possession of a firearm. The
elements necessary to establish this crime, in relevant part, are that (1) the person owns,
accesses, has in their custody, control, possession, or receives a firearm; and (2) was
previously convicted of a felony that is not a serious offense. See RCW 9.41.040(2). The
statute also requires the State to prove knowing possession. State v. Anderson, 141
Wn.2d 357, 366-67, 5 P.3d 1247 (2000).
Cobos’s argument is two-fold. He contends the record (1) does not establish he
understood the “knowing” possession component of the crime, and (2) his understanding
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No. 39587-1-III
State v. Cobos
that a prior conviction made his possession unlawful. Both of these arguments are
contradicted by the amended information.
The record supports the fact that Cobos understood the nature of the crime to
which he was pleading guilty. The statement of defendant on plea of guilty indicated that
the elements were outlined in the amended information, which Cobos acknowledged
possessing. The amended information alleged Cobos:
did knowingly own or knowingly have in his/her possession or
knowing have in his/her control, a firearm, to-wit: HANDGUN, after
having previously been convicted in this State or elsewhere of a felony
not specifically listed as qualifying for First Degree Unlawful
Possession of a Firearm, to-wit: THIRD DEGREE ASSAULT.
Clerk’s Papers (CP) at 2.
Furthermore, in his own words, Cobos noted that he “possessed unlawfully a
firearm in the state of Washington.” CP at 12-13. Although Cobos’s statement did not
include the word “knowing,” the word “unlawfully” is sufficient to show knowledge.
See, e.g., State v. Krajeski, 104 Wn. App. 377, 16 P.3d 69 (2001).
Finally, Cobos’s third argument rests on the court’s use of the affidavit. In
particular, Cobos asserts (1) nothing shows he understood what the court meant by
“affidavit,” (2) the judge did not make clear he planned to use the affidavit to prove a
factual basis for the plea, and (3) that the court suggested it had already read the affidavit,
leaving Cobos without any real opportunity to object. These arguments fail.
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No. 39587-1-III
State v. Cobos
First, Cobos fails to identify any authority stating that a defendant must
affirmatively acknowledge what an affidavit is. Instead, case law indicates that a
defendant must understand the “relation of the facts to the law.” R.L.D., 132 Wn. App. at
705. Second, contrary to Cobos’s assertion, the court specifically asked the parties if
they would “stipulate to the affidavit also as a purpose for the plea,” making clear its
intention to use it for a basis for the plea. RP at 20. Third, the court specifically asked if
there was any objection to which Cobos responded no. Cobos did not reflect any
confusion about the affidavit. Although the court did ask if there was any objection “to
know that I read the affidavit that identifies the firearm” Cobos still could have objected
to its use for the purpose of the plea. RP at 20. Finally, even without reference to the
affidavit, the record is sufficient to show that Cobos understood the knowledge element
of his conviction.
We hold that Cobos has failed to demonstrate his plea was involuntary.
2. THE IMPACT OF BLAKE TO COBOS’S OFFENDER SCORE
Cobos contends he is entitled to resentencing because the court failed to consider
the impact of State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Although the court
properly excluded his now unconstitutional prior convictions for possession of a
controlled substance from his offender score, he contends that the unconstitutional
convictions, and more specifically the sentences he served on the unconstitutional
convictions, impacted the calculation of his offender score. Cobos argues that the time he
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No. 39587-1-III
State v. Cobos
spent serving sentences for unconstitutional convictions should be considered crime free
time in the community under the wash-out provision in the sentencing guidelines. We
disagree.
RCW 9.94A.525 provides the rules for calculating a defendant’s offender score.
Under these rules, certain felonies and serious traffic infractions “‘wash-out’—i.e., will
not be counted—if the defendant has spent sufficient crime-free time in the community.”
State v. Schwartz, 6 Wn. App. 2d 151, 155, 429 P.3d 1080 (2018); see also RCW
9.94A.525(2)(b)-(d).
State v. Smith, 137 Wn. App. 431, 153 P.3d 898 (2007) provides guidance on this
issue. There, the defendant’s argument rested on the fact that his wash-out calculation
was impacted by a prior sentence that was based on a miscalculated offender score. Id. at
435-36. Although the court agreed that the defendant had spent extra time in custody, the
court rejected his contention that the five-year wash-out clock should have started earlier,
giving him more credit for time spent in the community. Id. at 440. Importantly, the
court discussed that even if it had assumed he was wrongly held, “the legislature intended
to reward only those defendants who spend five consecutive years in the community
without committing a crime.” Id. at 440. And there, the defendant could not show “five
crime-free years.” Id. at 440. As such, the court affirmed.
Cobos’s argument rests on the assumption that if he had actually spent more time
in the community, he would have been crime-free, contributing to his wash-out time
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No. 39587-1-III
State v. Cobos
calculation. However, this court does not consider this type of hypothetical scenario. See
Ward v. Bd. of County Comm’rs, 86 Wn. App. 266, 275, 936 P.2d 42 (1997) (“We
decline to reach hypothetical issues not raised by the facts presented.”). Although his
incarceration may have been partially responsible for the problem, this court has no way
to know whether he would have remained crime-free for the proscribed time to wash out
his crimes.
Cobos fails to demonstrate he is entitled to remand for resentencing based on
unconstitutional convictions that impacted his ability to wash out convictions.
Finding no error, we affirm Cobos’s conviction and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, A.C.J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Murphy, J.
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